R v Bourchier (a pseudonym)

[2024] NSWDC 15

District Court

New South Wales

Medium Neutral Citation:	R v Bourchier (a pseudonym) [2024] NSWDC 15
Hearing dates:	23 November and 1 December 2023 and 2 February 2024.
Decision date:	16 February 2024
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	For the principal offence of wounding with intent to cause grievous bodily harm: imprisonment for 3 years with a non parole period of 1 year 10 months. For the offence of contravening an AVO: offence proved but inexpedient to impose any penalty.
Catchwords:	CRIME - SENTENCE - wound with intent to cause grievous bodily harm - contravene AVO - young offender - serious Children's indictable offence - special circumstances for sentence to be entirely served in a (Juvenile) detention centre - special circumstances to reduce the statutory non parole period.
Legislation Cited:	Crimes Act 1900 (NSW) , s33(1)(a); Children (Criminal Proceedings) Act 1987 (NSW) ss. 6, 17, 19; Crimes (Sentencing Procedure) Act 1999 (NSW), s10(1)(a).
Cases Cited:	Bugmy v R (2013) 249 CLR 571; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; TM v R [2023] NSWCCA 185; R v Henry (1999) 46 NSWLR 346.
Category:	Sentence
Parties:	Rex (Crown) John Bourchier (a pseudonym) (Young Person)
Representation:	Mr Muddle (ODPP Parramatta) Mr Lloyd (Solicitor for the offender)
File Number(s):	2023/00017587
Publication restriction:	Confirm Statutory Non Publication Order of the name of the young person and anything else that might directly or indirectly identify him.

Judgment

1. John Bourchier (a pseudonym), you appear for sentence today in relation to the principal offence of wounding a person with intent to cause grievous bodily harm, domestic violence related.

2. This offence involves a contravention of s33(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 25 years. There is no standard non-parole period because, at the time of the offence, you were a juvenile. There is, however, a relevant guideline judgment: R v Henry (1999) 46 NSWLR 346

3. The offence of wounding a person with intent to cause grievous bodily harm is a "serious children's indictable offence" within the meaning of s17 of the Children (Criminal Proceedings) Act 1987 (NSW). Notwithstanding that this means that the offence is to be dealt with according to law, the sentencing principles in s6 of that Act still need to be taken into account.

4. In addition to that principal offence, you also appear for sentence in relation to an offence of contravening a prohibition or a restriction in an apprehended violence order (domestic related).

5. This offence involves a contravention of s14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum penalty for that offence is imprisonment for 2 years.

6. Ordinarily, this matter would be dealt with in the Local Court, but you have consented to it being dealt with at the same time as the principal offence.

7. The facts surrounding the principal offence and the other offence can be summarised by me as follows.

8. As at January 2023, you were 17 years 8 months old.

9. You had a girlfriend, Maria (a pseudonym). Your relationship with Maria was apparently a problematic one because Maria had an apprehended domestic violence order ("ADVO"), in her favour, against you, and which was in force from 16 November 2022 to 16 November 2023. That relationship has now ended.

10. As at January 2023, you were substantially living in Lithgow with a lady with whom you had been living since you were 14 years old and who was, and is, a mother figure to you. Maria was living with her mother (Ms Chester, a pseudonym) at Constitution Hill in Sydney.

11. Although the ADVO stated that you could not go within 50 meters of any place where Maria was living, you nevertheless regularly went to those premises at Constitution Hill - with Maria's agreement.

12. You and Maria were both users of illegal drugs. This was something that Maria and her mother would often verbally argue about. It would seem that those arguments could, on occasions, involve physical violence.

13. On 16 January 2023 (and again in breach of the ADVO), you went to Maria's house. Ms Chester was also there at that time as well as some other people.

14. At about 11:00pm, a verbal argument broke out between Maria and her mother. At some point, you became involved in that argument. The argument was about Maria's use of drugs and your role in "allowing" her to use drugs.

15. The argument became more heated, as a result of which Ms Chester got messages to Mr Edwards (her partner - although he did not live at the Constitution Hill premises) to come to her assistance.

16. In the argument, Ms Chester was verbally aggressive and, at one point, she pushed you and Maria.

17. Eventually, Ms Chester told you and Maria to leave her house - which you both did.

18. However, the verbal argument continued out the front of the premises - during which you damaged the front fence.

19. After a time, Ms Chester shut the front door of the premises leaving you and Maria outside.

20. At about 11:35pm, Mr Edwards arrived in his motor vehicle at the Constitution Hill premises. He was in an angry and highly emotional state. He grabbed Maria by her hair and swung her around for a few seconds.

21. You then intervened. You were armed with a knife. You stabbed Mr Edwards multiple times to his arms, torso and neck - after which, you and Maria left the scene.

22. Ms Chester and some of the people who had been in the house came out and found Mr Edwards lying on the ground, bleeding from the wounds you had inflicted.

23. The police and the ambulance were quickly on the scene and Mr Edwards was taken to the Westmead Hospital Emergency Department with multiple stab wounds. He also sustained the following injuries: left pneumothorax; open left scapula fracture; fractures to left ribs 6 and 7.

24. Mr Edwards was discharged from hospital on 20 January 2023. There is no evidence of any ongoing physical injuries, or any psychological injury beyond what might ordinarily be expected from such an incident. Mr Edwards did not provide the Court with a victim impact statement.

25. It is necessary for the Court to make findings of the objective seriousness of each of the offences for an offence of its kind. Insofar as the principal offence of wounding is concerned, it is slightly below a mid-range offence for an offence of its kind. Insofar as the contravening ADVO offence is concerned, it is towards, but not at, the bottom of the range.

26. Each offence is additionally aggravated because, at the time of the offending, you were on a good behaviour bond for 9 months which had been imposed by the Children's Court.

27. You did not give direct sworn evidence in the sentence proceedings. Rather, your further subjective circumstances were placed before the Court through the following documents:

1. a juvenile background report dated 7 November 2023;

2. a psychological report by Mr Ballardie dated 21 January 2024;

3. a letter from Mr Ben Lack, a custodial case worker at Cobham Youth Justice Centre (where you are currently being held) dated 30 January 2024; and

4. a portfolio report from the Putland Education and Training Unit dated 29 November 2023.

28. Both the juvenile background report and the psychologist's report set out (the latter in detail) your very unfortunate childhood - a childhood marked by your abandonment by your parents, your witnessing extensive domestic violence, your sexual abuse at age 11, and your being bullied in primary school.

29. Your grandparents did their best to provide you with a loving and caring environment. But it was not easy for them - or you. You also came to know the lady in Lithgow who became like a mother figure to you and who provided you with guidance and love.

30. At a very early age, you began using illegal drugs - and that problem only got worse over the years.

31. Despite the best efforts of your grandparents and the lady in Lithgow, your childhood was notably marked by substance misuse, sexual abuse and neglect (i.e., neglect by your parents).

32. At the time of your offending, and now, you suffered, and suffer, from the following conditions: (a) major depressive disorder; (b) generalised anxiety disorder; (c) negative cognitions; (d) low self-esteem; (e) moderate to high level of drug use disorder; (f) adult ADHD; and (g) poor anger management and problems with impulse control.

33. These psychological issues directly contributed to your offending behaviour. They meaningfully reduce your moral culpability for that offending (cf Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1) - as does your significantly deprived upbringing as a child (cf Bugmy v R (2013) 249 CLR 571) and your (young) age at the time of the offending.

34. You left school at the end of Year 10, after which you did some surveying work in the country with your grandparents. But that work did not address your deep psychological issues or your use of illicit drugs.

35. Your prospects for life at the time of your offending were, to be frank, bleak.

36. But since you have been in juvenile detention after your arrest on 17 January 2023, something quite remarkable has happened. Your life has very substantially turned around. You have successfully completed year 11 and are now well on the way to successfully completing Year 12. You have acquired meaningful job skills. You are successfully addressing your drug problem and the underlying and complicated psychological issues that I have referred to. You have been described by Mr Lack as "a model detainee" who has reached the "highest level possible" in the Cobham Youth Centre's incentive scheme. Your head teacher has written that you have "developed into a mature young man".

37. However, your rehabilitation is not yet complete. You have reached a highly critical stage in that process. One area in particular that requires continuing intervention is your long-term use of illicit drugs. In that regard, the author of the juvenile background report wrote that you "declined exploring a drug and alcohol counselling referral upon [your] return to the community". No objection was taken to that passage by your solicitor during the sentence hearing. However, he did state on your behalf that you had been asking for support regarding drugs whilst you had been in Cobham - an assertion not challenged by the Crown. Another area of importance in your continuing rehabilitation is the successful completion of the Higher School Certificate - something I am reasonably confident you will achieve whilst in Cobham. On the evidence before me, I do not have the same level of confidence if you were in the community.

38. Although you did not give direct sworn evidence, I accept that you are genuinely and insightfully remorseful for what you did on 16 January 2023.

39. By having regard to what you have achieved in detention, your remorse, the fact that you have no significant record of prior offending, the continuing love and support of your grandparents and the lady in Lithgow, and the support of your friend Michael who also lives in Lithgow (and with whom you will live when you are released), I regard your prospects of rehabilitation as being good.

40. As s6 of the Children (Criminal Proceedings) Act provides, and as the Court of Criminal Appeal has repeatedly clearly stated (for example, see TM v R [2023] NSWCCA 185), different sentencing principles apply to juvenile offenders - which is what you were at the time of your offending - even those who are being sentenced at law - compared to adults.

41. In sentencing a young person, significantly greater weight is to be given to encouraging the rehabilitation of that young person and less weight is to be given to the concept of general deterrence (that is, fixing a sentence that will deter others), which is commonly an important sentencing consideration when sentencing an adult. Indeed, rehabilitation remains a primary sentencing consideration. In addition, greater weight is to be given to your significantly reduced moral culpability which, as I have said, is a combination of your deprived childhood, your young age at the time of the offending, and the significant psychological issues which you had and continue to have.

42. Nevertheless, I am satisfied no sentence other than one of full-time - and continuing - detention is appropriate.

43. You entered a plea of guilty at the first available opportunity and you are, therefore, entitled to a discount of 25 per cent for the sentences to be imposed upon you.

44. In relation to the principal offence of wounding with intent to cause grievous bodily harm, except for that plea of guilty, I would have sentenced you to a term of imprisonment of 4 years. After the discount of 25 per cent, the term of imprisonment of 3 years.

45. As you were arrested on 17 January 2023, that term of imprisonment will expire on 16 January 2026. You will turn 21 on 14 April 2026.

46. Your age engages s19 of the Children (Criminal Proceedings) Act. Insofar as that Act is concerned, I am satisfied that there are special circumstances (within the meaning of s19(3) of that Act), justifying your continuing detention as a juvenile offender. In this regard, I find that:

1. the only available educational, vocational training or therapeutic programs that are suitable to your needs are those available in a (juvenile) detention centre; and

2. if you were committed to a correctional centre, there would be an unacceptable risk of you suffering psychological harm.

47. The totality of your sentence will, therefore, be served in a juvenile detention centre.

48. The warrant of commitment is to be endorsed accordingly, both as to the finding of special circumstances justifying your detention as a juvenile offender and the fact that the totality of the sentence is to be served in that fashion.

49. Returning to the sentence, it is necessary for me to fix a non-parole period. Because this is your first time in custody, because your prospects of rehabilitation would be enhanced by a longer period on parole, and because of your challenging psychological issues, I make a separate and different finding of special circumstances to vary the statutory ratio of the head sentence to the non-parole period.

50. I fix a non-parole period of 1 year 10 months to date from 17 January 2023 and which will expire on 16 November 2024.

51. I fix a balance of 1 year 2 months to date from 17 November 2024 and which will expire on 16 January 2026.

52. In relation to the offence of contravention of prohibition or restriction in an apprehended violence order, I find the offence proved; but, pursuant to s10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I find it inexpedient to impose any penalty.

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Decision last updated: 16 February 2024